Earlier this year, the National Constitution Center commissioned a constitution drafting project, with teams of constitutional scholars tasked with creating a new U.S. Constitution, or updating the existing one, according to libertarian, progressive, and conservative visions, respectively. In addition to the actual draft constitutions, we each submitted explanatory essays that summarized our approaches and noted key innovations. Here’s a summary of what we did, followed by some concluding thoughts about this experience. (Full disclosure: The project was suggested and underwritten by Cato board member Jeff Yass.)
I led Team Liberty (as we called ourselves), joined by Tim Sandefur of the Goldwater Institute (and a Cato adjunct scholar) and Christina Mulligan of Brooklyn Law School. This was probably an easier project for us than for our counterparts because the current Constitution is fundamentally a libertarian or, more precisely, classical liberal document. So much so that, at the outset, we joked that all we needed to do was to add “and we mean it” at the end of every clause. As we put in our introduction, however
many parts of our fundamentally libertarian constitution, particularly those that limit federal power, have been more often ignored, or cleverly evaded, than honored, especially by court decisions that have perverted the actual meaning of the document’s text. Our task was therefore largely to clarify and sharpen those provisions—most notably the Commerce Clause, which has been transformed by legal interpretation into a charter of expansive federal power far beyond what the framers envisioned.
Of course, there have been some developments in the 230 years since the original Constitution and Bill of Rights took effect and the 150 years since the post-Civil War amendments were ratified, that have demonstrated certain deficiencies from a libertarian perspective. Out-of-control spending necessitates a balanced budget requirement (except in emergencies). Today’s imperial presidency militates for a reweighing of checks and balances. We also couldn’t help but add in a few “and we mean it” provisions just to be safe, as well as certain liberty-enhancing reforms suggested by such scholars as Randy Barnett and Milton Friedman.
We also circumscribed executive power (as did the other groups in certain ways), including by allowing for impeachment of federal officials for “behavior that renders them unfit for office.” We made sure that Congress couldn’t coerce the states — the states are allowed to choose block grants instead of federal funding with regulatory strings — while a supermajority of the states can reverse a federal law or regulation. And we strengthened or made more explicit what we now consider to be protections under the First, Second, Fourth, Fifth, and Sixth Amendments, as well as — my favorite — protecting the right to the “fruits of one’s labors” and adding a catch-all “right to live a peaceful life of one’s choosing.” You can read our constitution here.
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